S.W.Aabith Basha vs Zeenathunnisa
2021 Latest Caselaw 23259 Mad

                                                                          S.A.No.908 of 2021

                           IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                           DATED :29.11.2021

                                                  CORAM

                           THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN

                                           S.A.No.908 of 2021


               S.W.Aabith Basha                                             ...Appellant


                                                   Vs.


               Zeenathunnisa                                                ...Respondent


               PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
               Procedure, to set aside the judgment and decree dated 30.09.2019 made in
               A.S.No.17 of 2019, on the file of the learned Subordinate Judge, Gudiyattam,
               in confirming the judgment and decree dated 27.02.2019 in O.S.No.21 of
               2018 on the file of the learned District Munsif, Gudiyattam, by allowing the
               present Second Appeal.


                                  For Appellant    :     Mr.A.Gouthaman
                                  For Respondent   :     Mr.M.Marudhachalam




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                                                                                   S.A.No.908 of 2021

                                                     JUDGMENT

This Second Appeal is directed against the judgment of the

learned Subordinate Judge, Gudiyattam, in A.S.No.17 of 2019 confirming the

judgment of the learned District Munsif, Gudiyattam, in O.S.No.21 of 2018.

2. The appellant/plaintiff filed the suit for the relief of the

declaration that marriage between him and the respondent took place on

21.08.2016, to be declared as null and void on the pronouncement of

muthalaq by the appellant on 08.11.2018 and for costs.

3. The case of the appellant, as seen from the plaint in brief, is as

follows:

The marriage between the appellant and respondent had taken

place on 21.08.2016 in the presence of family members in Masjid-E-Jadeed.

After marriage, appellant and respondent were living in the appellant's house

in R.Kollapalli Village. Appellant spent 2.15lakhs for marriage and also

gifted five sovereign gold jewels, four gram mahar and an anklet. One week

after marriage, respondent demanded the appellant to go for a separate living

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and started insisting on separate living everyday, else she wanted appellant to

come to her parent's house. Appellant refused to accept to go for a separate

living. Therefore, respondent started harassing the appellant and neglected to

maintain appellant and his parents. She has not maintained hygiene in the

house and she avoided taking bath for months together. After misplacing her

gold ring, she made allegations against appellant and his family members that

they had stolen the ring. She also threatened that she would give police

complaint against appellant and his family members. Without informing

appellant, she left the matrimonial home on 08.11.2017. She told that she

would come to live with the appellant, only if he sets up separate family.

Appellant made effort to unite with her through elders and his parents.

Respondent informed the panchayatars on 04.02.2019 that she would not join

him unless he sets up a separate family. Therefore, appellant paid the mahar

amount to the respondent in the presence of elders and pronounced muthalaq

on 04.02.2017. In such circumstances, the suit was filed for the reliefs as

aforesaid.

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4. Respondent filed written statement denying the allegations made

in the plaint. The averment that appellant provided jeweleries to respondent

is denied. It is claimed that only the respondent provided jewels and the

allegations like respondent is harassing the appellant and his family members,

neglected to maintain them and not keeping herself in hygienic condition are

all denied. It is claimed that the suit is filed for the relief on the basis of false

allegations. It is denied that respondent left her matrimonial home on

08.11.2017. There is no specific mention about the panchayat said to have

been taken place on 04.02.2019 and on whose presence panchayat had taken

place. It is claimed that muthalaq was pronounced on 04.02.2019, but

claimed that mahar amount was paid to the respondent on 04.02.2017. It is

contradictory pleading. In case of matrimonial dispute, petition should be

submitted to the Jamad and an enquiry would be conducted. No such enquiry

was conducted. This suit is filed without any basis and only with a view to

obtain divorce from the respondent. Appellant has not established that

muthalaq was pronounced in accordance with law. Therefore, the suit is

liable to be dismissed.

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5. On the above set of pleadings, the learned District Munsif,

Gudiyattam, framed the following issues:

i)Whether the plaintiff is entitled for the relief of declaration as

prayed for?

ii) To what other relief, plaintiff is entitled?

6. During the trial before the Trial Court appellant was examined as

PW1. PW2 and PW3 were also examined. Exhibits A1 to A4 had been

marked on the side of the appellant. DW1 and DW2 were examined and

Exhibits B1 to B5 were marked on the side of the respondent.

7. On considering the oral and documentary evidence, the learned

District Munsif, Gudiyattam, found that the appellant has not established that

muthalaq was pronounced for valid reason. It was also found that the

appellant has failed to prove that muthalaq was pronounced in the manner

known to law. In this view of the matter, the suit was dismissed.

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8. The appellant preferred Appeal No.17 of 2019. The learned

Subordinate Judge, Gudiyattam, found no reason to interfere with the

judgment of the Trial Court, confirmed the judgment of the Trial Court and

dismissed the Appeal. Against the said appeal judgment, this Second Appeal

is preferred.

9. Heard the learned counsel for the appellant and

Mr.M.Marudhachalam, learned counsel who appeared for the respondent in

the condone delay petition and perused the records.

10. The narration of facts of the case shows that, there is no dispute

that marriage between the appellant and respondent had taken place on

21.08.2016. The main reason for the appellant to divorce his wife by

pronouncing muthalaq is that the respondent was insisting on a separate

family and when that was not conceded by the appellant, the respondent left

the matrimonial home and that necessitated the pronouncement of muthalaq.

There are other reasons as well like harassment alleged against the

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respondent, such as refusing to take care of the parents of the appellant, not

keeping herself clean, preventing the appellant from attending mosque etc.,

11. The learned counsel for the appellant submitted that the contract

of marriage under the mahomedan law may be dissolved,

i)by the husband at his will, without the intervention of a Court.

ii)by mutual consent of the husband and wife, without the

intervention of a Court.

iii)by a judicial decree by the suit of the husband or wife.

12. He also submitted that any Mahomedan of sound mind, who has

attained puberty, may divorce his wife whenever he desires without assigning

any cause.

13. Talaq may be oral or in writing. No particular form of words is

prescribed for effecting a talaq. If the words are express or well understood as

implying divorce no proof of intention is required. If the words are

ambiguous, the intention must be proved. It is not necessary that the talaq

should be pronounced in the presence of the wife or even addressed to her.

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14. He submitted that in the case before hand, the appellant had

pronounced a valid muthalaq under the presence of elders and that was

proved by examining PW2 and PW3. However, without considering that,

appellant had proved pronouncement of muthalaq and terminated the

marriage, both the Courts below have wrongly appreciated the evidence and

dismissed the suit.

15. In response, learned counsel for the respondent submitted that

there had been judicial pronouncements including by the Hon'ble Supreme

Court that the “talaq, may be in the form of oral or writing, but it must be for

a reasonable cause. It must be preceded by an attempt of reconciliation of

husband and wife by two arbitrators one chosen from the family of the wife

and other by husband. If their attempts fail, then talaq will be effected by

pronouncement”. This is the observation made in the case reported in (2003)

3 ALD 220 (Zamrud Begum Vs. K.Md.Haneef) of the High Court of

Andhra Pradesh.

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16. In 2002 SCC online Mad 836 (A.S.Praveen Akthar Vs. The

Union of India), the High Court of Madras said that,

“....talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses, the petitioner's apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid, is based on a misunderstanding of the law”

Different Modes of talaq:

"A talak may be effected in any of the following ways:— (1) Talak ahsan.—This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

When the marriage has not been consummated, a talak in the ahsan form may be pronounced even if the wife is in her menstruation.

Where the wife has passed the age of periods of menstruation the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to a oral divorce and not a divorce in writing.

Talak Ahsan is based on the following verses of Holy

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Quran : "and the divorced woman should keep themselves in waiting for three courses."

"And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months, and of those too, who have not had their courses." (LXV : 4).

(2) Talak hasan.—This consists of three pronouncements made during successive tuhrs , no intercourse taking place during any of the three tuhrs.

The first pronouncement should be made during a tuhr , the second during the next tuhr , and the third during the succeeding tuhr.

Talak hasan is based on the following Quranic injunctions:

"Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness." (II : 229).

"So if he (the husband) divorces her [third time] she shall not be lawful to him afterward until she marries another person." (II : 230).

(3) Talak-ul-bidaat or talak-i-badai: This consists of—

(i) three pronouncements made during a single tuhr either in one sentence, e.g ., "I divorce thee thrice ,—or in separate sentences e.g., "I divorce thee, I divorce thee, I divorce thee"or,

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(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage,e.g ., "I divorce thee irrevocably." Talak-us-sunnat and talak-ul-biddat The Hanafis recognized two kinds of talak , namely, (1) talak-us-sunnat , that is, talak according to the rules laid down in the sunnat (traditions) of the Prophet: and (2) talak-ulbidaat , that is, new or irregular talak . Talak-ul- biddat was introduced by the Omeyyade monarchs in the second century of the Mahomedan era. Talak-ul-sunnat is of two kinds, namely, (1) ahsan , that is, most proper, and (2) hasan , that is, proper. The talak-ul-biddat or heretical divorce is good in law, though bad in theology, and it is the most common and prevalent mode of divorce in this country, including Oudh. In the case of talak ahsan and talak hasan , the husband has an opportunity of reconsidering his decision, for the talak in both these cases does not become absolute until a certain period has elapsed, and the husband has the option to revoke it before then. But the talak-ul-bidaat becomes irrevocable immediately it is pronounced (312). The essential feature of a talak-ul-bidaat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr . But the triple repetition is not a necessary condition of talak-ul-bidaat , and the intention to

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render a talak irrevocable may be expressed even by a single declaration. Thus if a man says: "I have divorced you by a talak-ul-bain (irrevocable divorce)", the talak is talak- ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression " bain "-(irrevocable) manifests of itself the intention to effect an irrevocable divorce".

17. Hon'ble Supreme Court of India has put a seal on the true law

relating to triple talaq under Islam. The Five Judges Bench of the Hon'ble

Supreme Court set aside the petition of divorce through Triple talaq in AIR

2017 Supreme Court 4609 (Shayara Bano Vs. Union of India). The Apex

Court held that the triple talaq is against the basic tenets of Quran.

"Given the fact that Triple talaq is instant and irrevocable, it was obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which was essential to save the marital tie, could not ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq was valid even if it was not far any reasonable cause, which view of the law no

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longer holds good after shamim Ara. This being the case, it was clear that this form of Talaq was manifestly arbitrary in the sense a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution. The 1937 Act, in so far as it seeks to recognize and enforce triple talaq, was within the meaning of the expression laws in force in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces triple talaq. The practise of talaq-e-biddat-triple talaq was set aside".

18. In this legal background, we have to appreciate the evidence

available in this case. It is pointed out by the learned counsel for the

respondent that the date of muthalaq is not specifically pleaded and proved.

The reading of the plaint averments shows that in para 4 of the plaint,

pronouncement of muthalaq is referred. It is said that on 08.11.2017, the

respondent left the matrimonial home. When efforts were made through

panchayatars for re-union, respondent said to have informed the panchayatar

on 04.02.2019, that she would not join the appellant unless, he sets up a

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separate family. Therefore, he claimed that he paid mahar amount to the

respondent and pronounced muthalaq on 04.02.2017. Obviously, there is

mis-match in the date of alleged pronouncement of muthalaq in para 4 of the

plaint and the prayer. In the prayer it is claimed that muthalaq was

pronounced on 08.11.2018. The plaint was filed in the year 2018. Obviously,

muthalaq would not have been pronounced on 08.11.2018. Thus, it could not

be gathered from the plaint averments, as to the date on which the muthalaq

was pronounced. This confusion was not cleared either before the Trial Court

or before the Appellate Court.

19. When comes to the finding of the Courts below, the learned

District Munsif Judge, Gudiyattam, on appreciation of oral and documentary

evidence found that it is claimed by the appellant that a petition was given to

jamad of the appellant and that was forwarded to jamad of the respondent.

There was no enquiry conducted on the basis of this petition. No evidence

was produced to show the presentation of this petition. Appellant's father and

brother was examined as PW2 and PW3. However, it is seen from their

evidence that they do not have personal knowledge about the alleged

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pronouncement of muthalaq by the appellant. Thus, the Trial Court concluded

that appellant has failed to prove the pronouncement of muthalaq against the

respondent. The first appellate Court also had gone through the evidence

carefully and found the discrepancy in the date of alleged pronouncement of

muthalaq and failure of the appellant in proving the muthalaq to the

satisfaction of the Court. Thus, both the Courts have concurrently found that

the appellant has failed to properly plead and prove the muthalaq alleged to

have been pronounced against the respondent and dismissed the suit. As said

above Hon'ble Supreme Court has set aside the practice of talaq-e-biddat-

triple talaq and triple talaq as violative of the fundamental rights contained

under the Article 14 of the Constitution and against the basic tenets of Quran.

Thus, this Court, finds no reason to interfere with the judgment and decree of

the first Appellate Court, confirming the judgment and decree of the Trial

Court. There is no substantial question(s) of law involved in this Second

Appeal.

20. In this view of the matter, the judgment and decree of the

learned Subordinate Judge, Gudiyattam in A.S.No.17 of 2019 confirming the

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judgment and decree of the learned District Munsif, Gudiyattam, in

O.S.No.21 of 2018 is confirmed.

21. In fine, this Second Appeal is dismissed. No costs.

29.11.2021

ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No

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To The Section Officer, VR Section, High Court of Madras.

https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021

G.CHANDRASEKHARAN.J,

ep

S.A.No.908 of 2021

29.11.2021

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